People v. Damaska

273 N.W.2d 58, 404 Mich. 391, 1978 Mich. LEXIS 403

• Court: Michigan Supreme Court
• Decided: December 29, 1978
• Docket: Docket 60431
• Status: Published

Opinions

Per Curiam.

Donald Lewis Damaska was convicted following a bench trial of two counts of breaking and entering a building with intent to commit larceny. MCLA 750.110; MSA 28.305. The Court of Appeals reversed the convictions in an unpublished per curiam opinion. The prosecutor applies for leave to appeal from that decision and, under GCR 1963, 853.2(4), we reverse the judgment of the Court of Appeals and reinstate the convictions.

The dispositive issue in this case is whether the arresting police officers had probable cause to seize an electronic calculator, which later proved to be stolen, from the back seat of the car defendant was driving.

During the late evening hours of March 11, 1975, two state police officers observed a car with its lights extinguished being driven across a parking lot from the vicinity of a Farm Bureau Insurance building. The lights were switched on as the car pulled onto the highway. This conduct, combined with the fact that the businesses were closed and the officers’ awareness that the Farm Bureau Insurance office had been the subject of two burglaries in recent weeks, prompted the officers to make an investigatory stop of the car. The defendant, "acting quite nervous”, was unable to produce a driver’s license and produced a vehicle registration that did not accurately reflect his name. The defendant stated that he had been drinking and had parked in the Farm Bureau parking lot to "sleep it off”; although the defendant did not have the appearance of having been drinking. One of the officers, using a flashlight, noticed what appeared to be a portion of a business machine protruding from beneath some clothing on the back seat and reached in and removed an electronic office calculator. The defendant explained that the calculator belonged to him; however, the calculator had a piece of plastic tape attached to it with the name "R. L. Luxmore” embossed on it. A radio check revealed that the calculator came from the Farm Bureau Insurance building and an investigation of that building, and a nearby building, revealed that both had been burglarized.

We believe the facts gave the officers probable cause to proceed as they did. The pertinent facts supporting this conclusion are: (1) the defendant emerged from a business parking lot late at night with his car lights extinguished; (2) the business was the subject of recent burglaries; (3) the defendant acted unusually nervous when stopped; (4) an office machine was observed partially hidden beneath some clothing on the back seat of the car; (5) the name taped on the calculator differed from the defendant’s. We held in People v Howell, 394 Mich 445; 231 NW2d 650 (1975), that the fact further investigation must be undertaken to establish that discovered property is stolen does not preclude a finding of probable cause for a search and seizure of the property when other factors combine to establish probable cause. The facts in the instant case form an equally compelling combination and require a similar finding.

Williams, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.